Death penalty under attack in courts and government

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July 2002

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Death penalty under attack in courts and government

A recent series of legislative votes and judicial decisions has abruptly altered the tone of the death penalty debate in the United States as, for the first time in decades, it is capital punishment's proponents struggling to defend and justify the application of the death penalty in America.

"The truth of the matter is the very landscape of the death penalty debate has changed beneath our feet," says David Elliot, communications director of the National Coalition to Abolish the Death Penalty (NCADP).

Last month, in a landmark ruling, the U.S. Supreme Court determined that executing the mentally retarded violates the constitutional ban on cruel and unusual punishment. The decision strikes down laws in 20 states.

Another Supreme Court decision may mean that more than 100 death row inmates must be given new sentencing hearings. The June 24 decision, which came just days after the June 20 decision banning the execution of mentally retarded inmates, overturns state laws under which judges rather than juries decide the factual grounds for imposing the death penalty.

Combined, these cases make "the most positive Supreme Court term in a quarter of a century in death penalty jurisprudence," says Elliot. Elliot expects the next big moves against the death penalty in the U.S. to begin at the fall opening of the next state legislative session as many states scramble to rewrite local laws in response to the two the two court rulings and new statewide moratorium efforts begin.

In a 6-3 vote that should effectively end the execution of the mentally retarded in the U.S., the nation's highest court said a national consensus—based on a changing appreciation of the reduced culpability of such inmates because of their diminished mental capacity—had emerged that allowed them to declare unconstitutional such executions as excessive punishment under the 8th Amendment. The Court was influenced in its decision by the fact that 30 states now prohibit the execution of mentally retarded people—18 states with the death penalty and 12 states that ban the death penalty altogether.

Elliot argues that the Supreme Court should apply the same reasoning to death penalty sentences for people who committed their crimes as teenagers. Across the nation, 83 people are on death row for crimes committed while under the age of 18. Two currently have execution dates, both in Texas. Twenty-eight states now ban the execution of youthful offenders—16 states with the death penalty and 12 states that ban all executions.

According to the NCADP, 44 people classified as mentally retarded have been executed in the United States since 1976. That may be a conservative estimate, since many inmates are not tested for mental retardation before they are executed. The state of Texas leads the nation in executing the mentally retarded, followed by Virginia, Alabama, Florida and Louisiana.

Commenting on the Ring decision, Elliot says, "Juries, not judges, should make the final decisions about life and death." He argues that too often the impartiality of judges, elected or appointed, was threatened in capital cases because an unpopular decision could place their jobs or political future in jeopardy.

According to Elliot, juries are more likely to sentence people to life in prison than judges. According to the NCADP, judges have been three times more likely to overturn a jury’s recommendation of life than they are to overturn a jury’s recommendation of death.

In other court news related to the death penalty, on July 1, a federal trial judge became the first U.S. judge to declare the current federal death penalty unconstitutional, calling it tantamount to "state-sponsored murder of innocent human beings."

"The unacceptably high rate at which innocent persons are convicted of capital crimes, when coupled with the frequently prolonged delays before such errors are detected . . . compels the conclusion that execution under the Federal Death Penalty Act . . . denies due process and, indeed, is tantamount to foreseeable, state-sponsored murder of innocent human beings," the judge said.

The Washington Post reported that despite these court actions, U.S. Attorney General John Ashcroft is aggressively pursuing the federal death penalty and frequently overruling his own prosecutors in the process, according to records and public officials.

On June 26, the New York City Council voted 39 to 12 to call for a moratorium on executions until the death penalty is investigated for issues of fairness, justice, equality, due process, and cost, joining 73 elected bodies that have now recognized problems with the death penalty. New York City is the largest of the municipalities that have adopted resolutions in favor of a moratorium. The resolution calls for a halt to executions while a commission is set up to study New York’s death penalty statute.

Jane Henderson, co-director of the Quixote Center, said more than 2,100 groups and municipalities have now called for a moratorium on executions. "Fourteen states have considered moratorium legislation within the past year," Henderson said. "Every poll conducted on the issue has shown that a majority of Americans support halting executions. This changing tide is truly the result of concerned citizens taking a stand."

Meanwhile, Maryland's Gov. Parris Glendening joined Gov. George Ryan of Illinois by ordering a moratorium on further executions in Maryland. In Illinois, a commission recently issued a 207-page report containing 85 recommendations aimed at preventing the execution of innocent people. There have been no executions in Illinois since Ryan's moratorium began in January 2000 after 13 death row inmates were exonerated in his state. In Maryland, a report examining the racial aspects of the death penalty is expected to be released in September. The American Bar Association has supported a moratorium on federal executions since 1997.

Despite the Supreme Court rulings, Elliot says it will remain up to state legislatures to determine the ultimate fate of the death penalty in the US—he doesn't think this court, as it is currently comprised, is likely to overturn capital punishment completely. "This court will only tinker along the edges of the death penalty," he says.—Kevin Clarke

For more information:
The Quixote Center
National Coalition to Abolish the Death Penalty

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